Two Recent Federal Court Cases of Note

By Nadine Wettstein

The Ninth Circuit Court of Appeals has held that parole as a Special Immigrant Juvenile qualifies as an admission “in any status” for eligibility for cancellation of removal. In that case, Jorge Raul Garcia entered the United States without inspection in 1992 when he was eight years old. In July 1994, a California court approved a dependency petition that had been filed by the state. The state then filed a I-360 petition to classify him as a Special Immigrant Juvenile and an I-485 application for adjustment to permanent residence. The petition and application were approved in 2000 (almost six years later!) and he became an LPR. His I-181, Memorandum of Creation of Record of Lawful Permanent Residence, indicated his “year admitted” as 1992.

Mr. Garcia was convicted of two minor theft convictions in 2005: stealing a bicycle and shoplifting. DHS instituted removal proceedings and Mr. Garcia applied for cancellation of removal under INA § 240A(a), for LPRs. DHS claimed Mr. Garcia lacked the required seven years of continuous residence, arguing that the period began in 2000 when he became a permanent resident. Mr. Garcia argued that he was deemed paroled in the United States upon the filing of the SIJS-based application in 1994, more than seven years before his second conviction.

The Ninth Circuit agreed with Mr. Garcia. It held that “admitted in any status” in broader than the statutorily-defined term “admitted.” There are instances where a person is “admitted” for the purposes of INA § 240A(a)(2) without been inspected and authorized to enter at the border. The court held that the grant of SIJS-based parole qualifies as one of the alternative methods of being “admitted in any status” for cancellation purposes. Mr. Garcia accrued the required seven years of continuous presence after being “admitted in any status.” Garcia v. Holder, 659 F.3d 1261, No. 08-73004 (9th Cir. No. 2, 2011).

The Third Circuit Court of Appeals has held that an alien’s due process rights were violated when an Immigration Judge (IJ) ceased functioning as neutral arbiter. In that case, Vasil Abulashvili overstayed his visitor visa. In removal proceedings, he applied for asylum, withholding and protection under the Convention Against Torture. At the merits hearing, the trial attorney was “woefully unprepared.” A few minutes into his questioning, the IJ took over the cross-examination and asked a total of 87 questions. She defended doing so by saying that “in order to afford the respondent with due process and an opportunity to explain why his testimony in court is different from his written application, someone needed to ask the respondent about it.” She ultimately found his asylum claim was not credible and denied it. The BIA affirmed, rejecting the claim that his due process rights had been violated by the IJ’s questioning, saying she had merely been “ferreting out … the facts.”

The court overruled, first holding that the IJ’s and BIA’s adverse credibility determination was not supported by substantial evidence. It appeared, the court said, that the IJ and BIA did not fairly consider the entire record and Mr. Abulashvili’s explanations of the purported discrepancies.

The IJ had every right to exercise her discretion to question Mr. Abulashvili, the court said, but she had “a responsibility to function as a neutral, impartial arbiter and must refrain from taking on the role of an advocate for either party.” Here, the IJ interjected herself into the proceedings to the extent of assuming the role of opposing counsel, the court said. After the IJ began cross-examining Mr. Abulashvili, the government attorney did not follow up with a single question, the court noted. “Why would he since an Immigration Judge was now doing his job for him? … It is not the IJ’s function to protect the government by becoming its counsel when its own counsel is not prepared.”

By stepping into the role of the attorney for the government, the IJ gave the strong impression that she was on the government’s side, the court said. The explanation that she was merely “ferreting out the facts” would be more plausible if the interventions were as likely to favor the respondent as the government, and if the record established that the IJ fairly considered the entire record before making negative credibility determinations, the court concluded. Abulashvili v. Attorney General, __ F.3d __, Nos. 08-2756 & 09-2560, 2011 U.S. App. Lexis 22835 (3d Cir. Nov. 15, 2011).